The Honorable Jane A. Restani, Chief Judge of the *

United States Court of International Trade, sitting by

designation.

08-1818-cr

USA v. Kerley

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2007

(Argued June 13, 2008 Decided September 25, 2008)

Docket No. 07-1818-cr

----------------------------------------------------

United States of America

Appellee,

v.

Clifford Kerley

Defendant-Appellant.

----------------------------------------------------

Before: JACOBS, Chief Judge, POOLER, Circuit Judge, and

RESTANI, Judge *

Defendant-Appellant Clifford Kerley appeals from a

judgment, entered after a jury trial in the United States

District Court for the Southern District of New York

(Loretta A. Preska, Judge), convicting him of two counts of

willful failure to pay a child support obligation in

violation of 18 U.S.C. § 228(a)(3) (2000). Affirmed in

part, vacated in part, and remanded for resentencing.
2

COLLEEN P. CASSIDY, Federal

Defenders of New York, Inc.,

Appeals Bureau (Barry D.

Leiwant, Attorney-in-Charge),

New York, NY for DefendantAppellant.

HARRY A. CHERNOFF, Assistant

United States Attorney

(Katherine Polk Failla,

Assistant United States

Attorney, on the brief), for

Michael J. Garcia, United States

Attorney for the Southern

District of New York, New York

NY for Appellee.

RESTANI, Judge:

This appeal arises from a conviction of two counts

of willful failure to pay a child support obligation in

violation of 18 U.S.C. § 228(a)(3). A jury found defendantappellant Clifford Kerley guilty of failing to make support

payments for his twin daughters in accordance with a court

order. The issues on appeal are whether (1) the district

court erroneously precluded his good faith defense, (2) the

second count was multiplicitous, and (3) the district court

incorrectly applied the United States Sentencing Guidelines

(“Guidelines”). Several questions of first impression are

presented, including (1) whether violation of a single child

support order which covers two children gives rise to one or
 The twins were born in 1989. Kerley relies on 1

Lopez’s testimony that she became pregnant in 1987 as

support for his good faith belief in lack of paternity, but

he admitted that the affair occurred in 1988, and nothing

indicates that he ever challenged our prior statement to

that effect, see United States v. Kerley, 416 F.3d 176, 177

(2d Cir. 2005).

3

two violations of 18 U.S.C. § 228; (2) in what circumstances

the child victim of a failure to pay child support is a

“vulnerable victim” for the purpose of an enhancement under

U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.1(b)(1)

(2006); and (3) whether the “loss amount” of a failure to

pay child support includes all arrears or only the amount

the defendant could have paid out of his income. For the

following reasons, we affirm the conviction on the first

count, we vacate the conviction on the second count, and we

remand for resentencing.

BACKGROUND

In 1988, Kerley and Judith Lopez engaged in an

extramarital affair that resulted in the birth of twin

girls. The relationship ended before the children were 1

born, and Lopez received public assistance after the

children’s births. In 1990, the Commissioner of Social

Services of the City of New York commenced a proceeding

against Kerley, seeking child support payments. Kerley
 A wage garnishment also occurred in 1992. 2

4

denied paternity and requested a blood test. The New York

State Family Court scheduled a blood test for May 2, 1990,

and a hearing on the issue of paternity for July 6, 1990,

but apparently Kerley did not appear on either day. On July

6, the Family Court entered filiation orders as to the

children and a default support order directing Kerley to

make monthly child support payments of $737 for both

children.

Without making any payments, Kerley moved to

Indiana with his wife and their children in 1991. In 1995,

after receiving notice that he owed support payments, Kerley

filed a pro se motion in New York State Family Court seeking

to reopen the matter to vacate the filiation and support

orders. He claimed that this was the first time he became

aware of the support obligation. In an affidavit, he stated

that he arrived late to the July 6 hearing and denied

filiation. The Family Court denied the motion.

In 1996, the New York City Office of Child Support

Enforcement began garnishing Kerley’s wages. The 2

garnishments ceased in 1997, apparently due to a merger

involving the employer, but resumed in 2000. In June 2000,
5

Kerley quit his job and, between then and July 2002, changed

jobs several times. The Government contended that he did so

to avoid the wage garnishments, but Kerley claimed that a

1999 injury prevented him from carrying out his job

functions. By the time of his arrest on July 29, 2002,

Kerley owed over $106,000 in arrears. The only support

payments made were from wage and tax garnishments.

Kerley waived indictment, and the Government

charged him in an information with one count of failure to

pay a support obligation. During an innocence proffer,

Kerley told the Government that he did not make payments

because he did not believe he was the father of the

children. Before trial, Kerley moved to dismiss the

information, arguing that the support order was

jurisdictionally defective. The district court granted the

motion, United States v. Kerley, No. 02-cr-1529, 2004 WL

1555119 (S.D.N.Y. July 9, 2004), but we reversed and

remanded the matter, United States v. Kerley, 416 F.3d 176,

184 (2d Cir. 2005). On remand, the Government filed a

superseding indictment charging Kerley with two counts of

the offense.

At trial, the disputed issue was whether Kerley’s
 The relevant period was from June 24, 1998, when 3

18 U.S.C. § 228(a)(3) came into effect, and July 29, 2002,

the date of Kerley’s arrest.

 Interestingly, Kerley testified that he also asked 4

about joint custody.

6

failure to make the support payments was willful. The 3

Government argued that Kerley was able to make the payments,

but arranged his financial circumstances to avoid the

obligation. The Government presented evidence to show that

Kerley changed jobs and remained unemployed to avoid the

wage garnishments, and that Mrs. Kerley’s income provided

Kerley with a comfortable lifestyle. Although the parties

stipulated that Mrs. Kerley’s income could not be used to

pay the obligation, the court allowed it to be used as

evidence of Kerley’s financial circumstances.

Kerley stated that he did not make the payments

because he believed that he was in compliance with the

support order. He testified that in 1996, an Indiana

attorney advised him that the wage garnishments put him in

compliance with the order. He also testified that he 4

thought “something happened” with his 1995 motion when the

wage garnishments stopped in 1997. Trial Tr. 258:20 (Aug.

1, 2006).
 The Guidelines sentencing range should have been 5

calculated at forty-six to fifty-seven months, but the

Government miscalculated the sentence.

7

The jury found Kerley guilty of both counts of the

offense. Applying the Guidelines, the district court

sentenced Kerley to forty-one months of imprisonment for

both counts. Kerley appeals. We have jurisdiction under 5

28 U.S.C. § 1291.

DISCUSSION

Kerley argues that the district court improperly

precluded his good faith defense, that the conviction on the

second count is based on a multiplicitous indictment, and

that the district court incorrectly applied Guidelines

enhancements.

A. Good Faith Defense

Kerley argues that he sought to present at trial

his good faith belief that he was not the father of the

children and therefore thought he did not have to make

support payments, but that the district court precluded him

from presenting this defense. He contends that the district

court erred in refusing to instruct the jury on the good

faith defense upon the ground that any good faith had to be

objectively reasonable, and further erred in instructing the
8

jury to disregard his theory of the defense. The arguments

lack merit.

Preliminarily, we reject the Government’s claim

that because Kerley negotiated and resolved the objections

he initially raised, he waived his challenge to the district

court’s instruction on willfulness. In “accepting” the

court’s proposed charge, counsel for Kerley stated, “I would

prefer the language in my instructions, but your Honor

rules, so I will sit down.” Trial Tr. 54:13–15 (July 31,

2006). The objection is preserved.

Similarly, contrary to the Government’s

contention, it is unclear that Kerley never asserted belief

in lack of paternity as the theory for his good faith

defense. He claims that he abandoned his good faith

argument because of the district court’s rulings and jury

instructions. The record shows that Kerley intended to

present evidence that he did not believe the paternity

finding and at one point tried to overturn it. See Trial

Tr. 25:24—27:7, 71:10—75:4 (July 31, 2006); Notice of Mot.

to Vacate Default Order. For purposes of this disposition,

we treat the defense as preserved.

We review challenges to jury instructions de novo. 
9

United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998). A

conviction will be reversed for refusal to give a requested

charge only if the requested instruction is “legally

correct, represents a theory of defense with basis in the

record that would lead to acquittal, and the theory is not

effectively presented elsewhere in the charge.” United

States v. Doyle, 130 F.3d 523, 540 (2d Cir. 1997) (citations

and quotations omitted). We review jury instructions as a

whole. United States v. Carr, 880 F.2d 1550, 1555 (2d Cir.

1989).

Under 18 U.S.C. § 228, “[a]ny person who . . .

willfully fails to pay a support obligation” is subject to a

fine, imprisonment, or both. 18 U.S.C. §§ 228(a)(3),

(c)(2). The willfulness standard is borrowed from the tax

statutes and is “interpreted in the same manner that the

Federal courts have interpreted [the] felony tax

provisions.” United States v. Mattice, 186 F.3d 219, 225

(2d Cir. 1999) (quoting H.R. Rep. No. 102-771, at 6 (1992)). 

Therefore, “willfulness” under § 228 means a “voluntary,

intentional violation of a known legal duty.” Id.

(quotations omitted); see Cheek v. United States, 498 U.S.

192, 201 (1991) (interpreting willfulness standard in tax
10

statute). A defendant found to have acted willfully may

negate willfulness by showing ignorance of the law or that,

because of a misunderstanding of the law, he had a good

faith belief that he was not violating the legal duty. See

Cheek, 498 U.S. at 202. A good faith belief need not be

objectively reasonable to negate willfulness. See id.

The district court instructed the jury on

willfulness as follows:

The term willfully as it pertains to this

element means a voluntary, intentional

violation of a known legal duty. In

other words, the defendant must have

acted voluntarily and intentionally and

with the intent to do something the law

forbids. That is to say with a purpose

either to disobey or disregard the law,

not as a result of inadvertence, mistake

or some other innocent explanation. . . .

[Y]ou must . . . find the defendant

possessed the specific intent not to pay

the support obligation.

 

Trial Tr. 422:19—25, 424:10—12 (Aug. 2, 2006). Read as a

whole, the instructions captured the essence of a good faith

defense. The instructions do not imply a requirement that a

good faith defense must be objectively reasonable.

As to Kerley’s argument that the district court

instructed the jury to disregard his good faith defense, the

court actually instructed the jury neither to consider the
 Kerley also sought to introduce statements in an 6

affidavit in support of his good faith defense, but the

court excluded them on hearsay grounds. The exclusion of

those statements is not challenged on appeal.

11

validity of the child support order nor to consider whether

the defendant was actually the father. The court, however, 6

did not preclude the jury from considering Kerley’s state of

mind with regard to the mens rea required by the statute. 

There was considerable evidence admitted as to Kerley’s

state of mind. The prosecution itself offered testimony as

to Kerley’s claim that he was not the father. Kerley’s

statement that he thought something had changed in New York

to cause wage garnishment to cease implied that he was

unsure of the status of the support order. While counsel

chose to emphasize Kerley’s negligence to counter the charge

of willfulness, the court did not limit the evidence and

counsel’s arguments to the extent Kerley now asserts. We

find no reversible error in this regard.

B. Multiplicitous Count

Kerley argues that the second count must be

vacated because it is multiplicitous and violates the Double

Jeopardy Clause. He contends that he violated only one

support order and that because § 228 does not clearly
12

authorize cumulative punishments for each child covered by a

support order, the “rule of lenity” requires that the

statute be interpreted to preclude multiple counts.

The district court concluded that “[t]he plain

language of the statute makes it clear that the crime is a

failure to pay support obligation with respect to a child”

and that the crime “is not in any manner keyed to the Court

order.” Sentencing Tr. 34:7—10. The court continued that

“[t]he requirement that each child be supported was embodied

in a single order cannot be the basis for a double jeopardy

argument” and therefore “the fact that there . . . are two

children[] makes it completely appropriate for there to be

two counts.” Id. at 34:12—16. We review the district

court’s interpretation of the statute de novo. See United

States v. Mitchell, 328 F.3d 77, 81 (2d Cir. 2003).

“An indictment is multiplicitous when it charges a

single offense as an offense multiple times, in separate

counts, when, in law and fact, only one crime has been

committed.” United States v. Chacko, 169 F.3d 140, 145 (2d

Cir. 1999). Where a statutory offense is charged as two

separate counts, we must determine “whether Congress

intended the counts to constitute separate ‘units of
13

prosecution.’” United States v. Handakas, 286 F.3d 92, 98

(2d Cir. 2002) (alterations omitted) (quoting Bell v. United

States, 349 U.S. 81, 82—83 (1955)), overruled on other

grounds by United States v. Rybicki, 354 F.3d 124 (2d Cir.

2003). If Congress leaves a statute ambiguous as to the

proper unit of prosecution, “the ambiguity should be

resolved in favor of lenity.” Bell, 349 U.S. at 83. Under

the rule of lenity, courts may not “turn[] a single

transaction into multiple offenses . . . .” Id. at 84.

Section 228 criminalizes willful failure to pay “a

support obligation with respect to a child . . . .” 18

U.S.C. § 228(a)(3). The statute defines “support

obligation” as “any amount determined under a court order

. . . to be due from a person for the support and

maintenance of a child . . . .” Id. § 228(f)(3). The

statute does not specify whether failure to pay a support

obligation with respect to multiple children constitutes

multiple offenses. See id. § 228. The parties have not

cited any relevant legislative history to support such a

reading. It is not so clear to us that Congress meant to

distinguish “support obligation” and “court order” as the

Government suggests and the district court concluded, and it
 Here, the court order itself is ambiguous as to 7

whether Kerley owed one support obligation in the sum of

$737 monthly or two separate obligations in the amount of

$368.50 for each child.

 The Government’s argument that Congress’s use of “a” 8

(continued...)

14

is possible that Congress proceeded under the assumption

that each court order would mandate payment for only one

child. See, e.g., id. §§ 228(a)(3), (f)(3). We have 7

stated that “as a matter of statutory construction, we are

reluctant to turn a single transaction into multiple

offenses. We therefore impute to Congress the intent to

impose separate punishments for the same underlying conduct

only when Congress has clearly articulated that intent.” 

United States v. Salameh, 261 F.3d 271, 278 (2d Cir. 2001)

(quotations, citations and alterations omitted); see also

United States v. Santos, 128 S. Ct. 2020, 2026 (2008) (“When

interpreting a criminal statute, we do not play the part of

a mind reader. . . . ‘Probability is not a guide which a

court, in construing a penal statute, can safely take.’”

(alteration omitted) (quoting United States v. Wiltberger, 5

Wheat. 76, 105 (1820))). Because Congress failed to specify

the proper unit of prosecution, the rule of lenity requires

that we interpret the statute in favor of Kerley. See 8
(...continued) 8

instead of “any” renders the statute unambiguous lacks

merit. Contrary to the Government’s argument, the Bell

court’s finding that the statute at issue there was

ambiguous did not hinge on the use of the word “any.” See

Bell, 349 U.S. at 81–84. The Government’s argument that

such an interpretation of the statute at issue here would

provide a more lenient result in favor of the defendant is

unpersuasive.

 We need not consider Kerley’s prosecutorial 9

vindictiveness claim in light of our disposition of the

issue under the rule of lenity.

15

Bell, 349 U.S. at 83 (holding that transportation of two

women on the same trip and in the same vehicle in violation

of the Mann Act constituted a single offense). We vacate

the conviction on the second count and remand the matter to

the district court for resentencing on the basis of a

conviction for one count.9

C. Sentencing

Kerley challenges the court’s application of the

“vulnerable victim,” “loss amount,” and “obstruction of

justice” Guidelines enhancements. We review the district

court’s findings of fact for clear error and accord

deference to the court’s application of the Guidelines to

the facts. United States v. Dupre, 462 F.3d 131, 144 (2d

Cir. 2006). We review the district court’s interpretation

of the Guidelines de novo. United States v. Maloney, 406
16

F.3d 149, 151—52 (2d Cir. 2005).

1. “Vulnerable Victim” Enhancement

Kerley argues that the circumstances here do not

warrant application of the vulnerable victim enhancement. 

To the extent that the enhancement applies to child support

cases, we agree that its requirements have not been met.

The vulnerable victim enhancement applies where

“the defendant knew or should have known that a victim of

the offense was a vulnerable victim.” U.S.S.G.

§ 3A1.1(b)(1). A “vulnerable victim” is defined as one “who

is unusually vulnerable due to age, physical or mental

condition, or who is otherwise particularly susceptible to

the criminal conduct.” Id. § 3A1.1 cmt. n.2. The

vulnerability “must bear some nexus to the criminal conduct”

and “the defendant generally must have singled out the

vulnerable victims from a larger class of potential

victims.” United States v. McCall, 174 F.3d 47, 50 (2d Cir.

1998). An inquiry into a victim’s vulnerability must be

“individualized” and must not be based on “broad

generalizations about victims based upon their membership in

a class . . . .” Id.

The district court found that the twins were
17

particularly susceptible to the criminal conduct because

their mother was a recent immigrant without financial

resources or family support. The court noted that Kerley

was aware of this situation and distinguished this case from

those where “the custodial parent has adequate resources.” 

Sentencing Tr. 26:2—3. The court concluded that Kerley

targeted the children for nonpayment because they were

“destitute and unable to pursue” him. Id. at 26:7.

The circumstances relied upon by the district

court are insufficient to distinguish these children from

the typical subjects of child support cases. The children

were not rendered less capable of avoiding nonpayment by

their condition of poverty, as state and local authorities

were pursuing Kerley on their behalf. To the extent that

one of the children has a disability, as alleged by the

Government, there is no evidence that Kerley knew or should

have known of the disability, or that Kerley targeted her

because of the disability. Instead, the evidence shows that

Kerley refused to make payments because he was interested

only in his own situation and his immediate family. Kerley

did not maliciously refuse to support his twin daughters

because of who they were; his crime was that he failed to
 Under the enhancement, the base offense level 10

increases in proportion to the loss amount as follows:

(A) $5,000 or less no increase

(B) More than $5,000 add 2

(C) More than $10,000 add 4

(D) More than $30,000 add 6

(E) More than $70,000 add 8

(F) More than $120,000 add 10

(G) More than $200,000 add 12

U.S.S.G. § 2B1.1(b)(1).

 Kerley also argues that the court erroneously 11

applied the “unconstitutional” presumption that he was able

to pay the total arrears. Section 228 provides that “the

existence of a support obligation . . . creates a rebuttable

presumption that the obligor has the ability to pay the

(continued...)

18

consider them at all. There was no nexus between the twins’

individual circumstances and Kerley’s failure to fulfill the

support order, and therefore the vulnerable victim

enhancement does not apply.

2. “Loss Amount” Enhancement

Kerley argues that the district court erred in

deeming the total arrears as the loss amount for Guidelines

purposes. He claims that the loss amount should be the

amount that he was able to pay and that, according to the

evidence, it should be substantially less than the court’s

calculated amount of $152,491. This argument lacks 10

merit.11
(...continued)

support obligation.” 18 U.S.C. § 228(b). Some courts have

found this presumption to be unconstitutional. See United

States v. Edelkind, No. 05-60067, 2006 WL 1453035 (W.D. La.

May 18, 2006); United States v. Casey, 05CR330, 2006 WL

277092 (D. Neb. Feb. 3, 2006) United States v. Pillor, 387

F. Supp. 2d 1053 (N.D. Cal. 2005); United States v. Morrow,

368 F. Supp. 2d 863 (C.D. Ill. 2005); United States v.

Grigsby, 85 F. Supp. 2d 100 (D. R.I. 2000). We need not

decide the constitutionality or propriety of the application

of the presumption because, as will be seen, the evidence

shows that Kerley had the ability to pay the total arrears.

19

The Guidelines define “loss amount” as “the amount

of child support that the defendant willfully failed to

pay.” U.S.S.G. § 2J1.1 cmt n.2. The failure to pay is

willful to the extent that the defendant had the ability to

pay. See Mattice, 186 F.3d at 228—29. The extent of the

ability to pay depends on the income left over “after

meeting [the] basic subsistence needs . . . .” Id. at 229.

The district court found that Kerley could have

paid the total arrears. The court reasoned that

Mrs. Kerley’s earnings provided Kerley with “a very

comfortable way of life with respect to all necessities,”

and that Kerley, an “able[-]bodied person,” could easily

have earned a higher income. Sentencing Tr. 16:3—4, 14. 

From the way he organized his financial situation, the court

concluded, all his income could be deemed disposable income. 
20

The court found incredible Kerley’s injury claim, and

concluded that he changed jobs and stayed unemployed to

avoid the wage garnishments.

The district court’s findings are not erroneous. 

Although Kerley correctly argues that his total gross income

could not all be deemed disposable income, as he paid taxes

on his gross income, and that the district court improperly

considered his subsistence needs and personal expenses as

being provided by his wife’s earnings, the evidence shows

that he could have earned a higher income but chose not to

do so. Further, Kerley’s failure to seek a reduction or

remission of the support obligation suggests willfulness. 

See Mattice, 186 F.3d at 229 (“A non-custodial parent who

does not have the funds to satisfy the child support award,

and who does not obtain a reduction or remission of the

award because of inability to pay, will almost certainly be

engaged in willful defiance of the state court’s child

support order.” (quoting United States v. Ballek, 170 F.3d

871, 873 (9th Cir. 1999))). The district court did not err

in deeming the total arrears as the loss amount.

3. “Obstruction of Justice” Enhancement

Kerley argues that the district court’s finding of
21

willful perjury in support of its application of the

obstruction of justice enhancement was unsupported because

his testimony was “plausible, not contradicted, and

corroborated by Mrs. Kerley’s testimony.” Appellant’s Br.

57. This argument also lacks merit.

The obstruction of justice enhancement applies

where a “defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or

sentencing of the instant offense,” U.S.S.G. § 3C1.1,

including perjury, United States v. Dunnigan, 507 U.S. 87,

93—94 (1993). To apply the enhancement on grounds of

perjury, the district court must find that “all of the

factual predicates for a finding of perjury” have been

shown. United States v. Ben-Shimon, 249 F.3d 98, 102 (2d

Cir. 2001) (quoting Dunnigan, 507 U.S. at 95). The court

must “find that the defendant gave ‘false testimony

concerning a material matter with the willful intent to

provide false testimony, rather than as a result of

confusion, mistake or faulty memory . . . .’” United States

v. Zagari, 111 F.3d 307, 328 (2d Cir. 1997) (quoting

Dunnigan, 507 U.S. at 94).
 The district court found a contradiction between 12

Kerley’s claim that his wife accompanied him on July 6 when

he attempted to appear for a hearing, and Kerley’s prior

claim that he failed to appear for the blood test because he

did not want his wife to know about the paternity

allegation. This finding is somewhat problematic. Kerley

did not give specific testimony as to timing, although it is

possible that he told his wife of the allegation between

May 2 and July 6. Nonetheless, because the other findings

are not erroneous, the obstruction of justice enhancement

stands.

22

The district court found that Kerley’s reasons for

changing jobs, his injury claim, testimony regarding the

Indiana attorney’s legal advice, and claims that he arrived

late to the July 6 hearing were perjurious. The court based

its findings on Kerley’s attitude and demeanor, inconsistent

explanations, and failure to raise the defenses during the

innocence proffer, and a lack of supporting evidence. The

district court made no clear error as to its factual

findings. Further, the perjured testimony is material, as 12

it goes to the issue of willfulness.

CONCLUSION

For the foregoing reasons, we conclude that the

district court did not err in its rulings as to the good

faith defense, and that the rule of lenity requires that we

vacate the conviction on the second count of the offense. 

We also conclude that although the district court correctly
23

applied the loss amount and obstruction of justice

enhancements under the Sentencing Guidelines, the court

erred in concluding that the vulnerable victim enhancement

was applicable. Accordingly, we vacate the conviction on

the second count and remand to the district court for

resentencing in accordance with this opinion.